Waverley Municipal Council v Cheowiry [2003] NSWCA 12

Waverley Municipal Council v Cheowiry [2003] NSWCA 12

The claimant had made and communicated a deliberate commercial decision not to appeal after considering the District Court judgment. The later decision in Waverley Council v Lodge did not materially explain the failure to seek leave promptly, because the claimant was a party to that case and should already have been alive to the relevant issues. In light of the opponent's vested right in the judgment and the absence of material showing that refusal would cause injustice to the claimant, the extension of time was refused.

Jurisdiction
Australia
Judgment Date
05 February 2003
Procedural Posture
Application for an Extension of Time in Which to Seek Leave to Appeal and for Leave to Appeal / Court of Appeal Application From District Court Judgment
Outcome
Application refused. Summons dismissed with costs.
Legal Topics
['extension of Time to Seek Leave to Appeal' 'leave to Appeal' 'deliberate Decision Not to Appeal' 'personal Injury Liability' 'obvious Risk' 'contributory Negligence']
['civil Procedure' 'torts'] ['extension of Time to Seek Leave to Appeal' 'leave to Appeal' 'deliberate Decision Not to Appeal' 'personal Injury Liability' 'obvious Risk' 'contributory Negligence']

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Procedural Posture

Application for an Extension of Time in Which to Seek Leave to Appeal and for Leave to Appeal / Court of Appeal Application From District Court Judgment

Legal Issues

  1. 1 ['Whether the claimant should be granted an extension of time in which to seek leave to appeal after stating that it would not appeal.' "Whether the claimant's change of mind after Waverley Council v Lodge (2001) 117 LGERA 447 provided a satisfactory explanation for the delay." 'Whether refusal of the extension of time would constitute an injustice to the claimant.']

Ratio Decidendi

The claimant had made and communicated a deliberate commercial decision not to appeal after considering the District Court judgment. The later decision in Waverley Council v Lodge did not materially explain the failure to seek leave promptly, because the claimant was a party to that case and should already have been alive to the relevant issues. In light of the opponent's vested right in the judgment and the absence of material showing that refusal would cause injustice to the claimant, the extension of time was refused.

Court Disposition

Application refused. Summons dismissed with costs.

Orders

  • ['Application refused.' 'Summons dismissed with costs.']